Category: Ninth circuit immigration executive order

The Ninth Circuit travel ban decision has now dealt another blow to the Executive Order limiting travel from six predominantly Muslim countries. This decision is the latest in a series of decisions that have upheld the restraining order against the ban. I believe that this decision is the right decision, however, I do believe that the Justice Department has made a mistake in appealing the case to the Supreme Court, which I would discuss below.

The Ninth Circuit’s decision is a reiteration of its previous decision dealing with the issue. The Ninth Circuit, in essence, said that the President and the Administration did not articulate a rational basis for the ban, which is a classification based on religion. The decision goes through all of the Administration’s arguments to support and the ban, and, one by one, the Court struck them down. The Court did allow the enhanced vetting procedures to go forward, which, in due time, would be in court. I believe that these procedures will also be unconstitutional based on the procedures once they are released.

Why Did the Administration Make a Mistake?

I believe that the Administration made a mistake in asking the Supreme Court to review the restraining order decisions from two different cases. It is worth noting that the two courts, at least the Fourth Circuit, is not a bastion of liberal jurisprudence. This, in my opinion, would make a decision overruling the restraining orders much more difficult.

It is also worth noting that in a case called United States v. Texas, which reviewed President Obama’s Executive Order upheld the lower court’s decision enjoining the order based on the same grounds the new order was restrained. In that decision, the Supreme Court upheld the restraining order from the Fifth Circuit. That case held that the states had standing to challenge President Obama’s Executive Order granting relief from removal for millions of undocumented immigrants. I do not believe that there has been a shift in the law to change that decision. The Administration is sure to challenge jurisdiction based on state standing. Moreover, the chances of the Supreme Court granting certiorari to review the lower courts’ decision have diminished because of that binding prior decision.

I believe that the Administration should have waited for a ruling on the merits to appeal to the Supreme Court.

Why Are the Vetting Procedures Problematic?

I believe that the vetting procedures will also be a problem under this administration. Unfortunately, we will not be able to know them until there are regulations dealing with these procedures are published. Then, immigration attorneys and the public at large would be able to review them. There will be legal challenges to the procedures if they were based on discriminatory criteria.

We now await the Supreme Court’s decision on whether it will take the case.

Well, to start with, judges are people. If you attack them, they subconsciously, will hold it against you. So please have some respect for other branches of government Mr. President.

What Happens Now?

So the three judges panel upheld the lower court’s ruling banning the ban. The court ruled that the Plaintiffs have an interest in allowing travelers in. The court balanced the national security interest and the potential harm to the Paintiffs and ruled that the harm outweighs the national security interest.

What Happens Now?

The Administration now has two options: ask for a full review by the Ninth Circuit or appeal to the Supreme Court. The two options are very tricky. The first one might be the better option however, since we still have eight justices on the higher court. The 4-4 decision threat might lead to a delay on the administration’s behalf until their nominee is confirmed.

What should the Administration do?

I believe that the best course of action is for the Administration to withdraw the order. I doubt that’ll ever happen, however. I think the the President’s statement during the campaign and the fact that the order discriminates against Muslim refugees taint the order and make it unconstitutional.

I don’t think that the battle over this is over by any means. The President just sent out a tweet saying “See You in Court”. To read the decision, click here.

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